| Cohen v Schachter |
| 2008 NY Slip Op 04643 [51 AD3d 847] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Mina Cohen, Respondent, v Joseph Schachter et al.,Defendants, and Fimor Construction Corp., Appellant. |
—[*1] Nancy T. Sherman, Lake Success, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant Fimor ConstructionCorp. appeals, as limited by its brief, from so much of an order of the Supreme Court, KingsCounty (Harkavy, J.), dated August 15, 2007, as denied its motion for summary judgmentdismissing the plaintiff's complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendant Fimor Construction Corp. for summary judgment dismissing thecomplaint insofar as asserted against it is granted.
The plaintiff allegedly was injured when she slipped and fell on a snow-covered metal signwhich was lying on the sidewalk in front of a construction project on premises owned by thedefendants Cong Yehoshea and Yeshiva Ohel Yehoshea. The defendant Fimor ConstructionCorp. (hereinafter Fimor) was identified as the holder of the building permit posted at theconstruction site.
The plaintiff commenced the instant action against Fimor, among others, allegingcommon-law negligence in the ownership, operation, maintenance, and control of the premises.Following the completion of discovery and the filing of the note of issue by the plaintiff, Fimormoved for summary judgment dismissing the complaint insofar as asserted against it on theground, inter alia, that it had not performed any work at the accident location. The SupremeCourt, finding that the presence of Fimor's name on the permit raised a question of fact, deniedthe motion.[*2]
The Supreme Court erred in denying Fimor's motion forsummary judgment dismissing the complaint insofar as asserted against it. A contractor may beliable for an affirmative act of negligence which results in the creation of a dangerous conditionupon a public street or sidewalk (see Brown v Welsbach Corp., 301 NY 202 [1950];Kleeberg v City of New York, 305 AD2d 549, 550 [2003]). However, under thecircumstances of this case, it would be mere speculation to conclude that the allegedly dangerouscondition which caused the plaintiff to slip and fall was caused by any affirmative act ofnegligence by Fimor (see John vTishman Constr. Corp. of N.Y., 32 AD3d 458 [2006]; Kleeberg v City of New York,305 AD2d 549 [2003]). Fimor met its burden of proof by submitting competent evidenceestablishing that it performed no construction work at the accident location and, in opposition,the plaintiff failed to submit any evidence to raise a triable issue of fact.
Further, even assuming that Fimor acted as a construction manager or general contractor onthe project pursuant to a contract with the owners, the plaintiff failed to put forth any evidencethat Fimor assumed a duty of care toward her as a third-party beneficiary of this contract (seeEspinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Walls v City of New York, 48 AD3d 792 [2008]; John v Tishman Constr. Corp. of N.Y.,32 AD3d 458 [2006]).
Lastly, Fimor established that it lacked control over the work site and no triable issue of factwas raised by the plaintiff in opposition to that showing. Thus, there is no basis to find Fimorliable for having failed to correct an allegedly dangerous condition on the premises (see Keating v Nanuet Bd. of Educ., 40AD3d 706, 708-709 [2007]; cf.Tilford v Sweet Home Real Prop. Trust, 40 AD3d 966 [2007]). Spolzino, J.P., Carni,Dickerson and Eng, JJ., concur.